3-75 




3**5 



"75 



ipT 275 

I.G45 K5 

Copy 1 Menne Girard and Francoise Fenelon Vidal, Citizens of France, 

I 

i " versus 



The Mayor, Aldermen, and Citizens of Philadelphia, and Others. 



BILL IN CHANCERY, 



FILED IN THE 

CIRCUIT COURT OF THE UNITED STATES 

FOR 

THE PENNSYLVANIA DISTRICT, 
ON BEHALF OF THE HEIRS 

OF THE 

LATE STEPHEN GIRARD, ESQ. 

To recover all the Real and Personal Estate of the Testator, left to 

the Corporation in trust, with the exception of the sum 

devoted to the improvement of Delaware Avenue. 



PHILADELPHIA: 

PUBLISHED BY ROBERT DESILVER, 

No. 110 Walnut Street. 

1836. 



TO THE HONOURABLE 

The Judges qftl\e Circuit Court of the United States for the East- 
ern District of Pennsylvania, sitting in equity. 

m 

Humbly complaining, 
Showeth, unto your honours, your orator and oratrix, Eti- 
enne Girard and Francoise Fenelon Vidal, aliens to the United 
States of America, and citizens and subjects of the Monarchy 
of France, that Stephen Girard, late of the City of Philadelphia, 
in the State of Pennsylvania, banker and merchant, a native 
born subject of the former kingdom of France, but at the time 
of his death, and for more than fifty years preceding, a citizen 
of the United States, and of Pennsylvania, and there domiciled, 
departed this life at Philadelphia aforesaid, on the twenty-sixth 
day of December, in the year One Thousand Eight Hundred 
and Thirty-one, having first duly made and published his last 
Will and Testament, bearing date on the sixteenth day of Fe- 
bruary, One Thousand Eight Hundred and Thirty, with a cer- 
tain writing thereto annexed, bearing date on the twenty-fifth 
day of December in the same year, purporting to be a republi- 
cation thereof, also a certain other paper writing purporting to 
be a codicil to his last will and testament, and a second repub- 
lication thereof, bearing date on the twentieth day of June, One 
Thousand Eight Hundred and Thirty-one, of which last will, 
&c, the said testator therein and thereby appointed Timothy 
Paxson, Thomas P. Cope, Joseph Roberts, William J. Duane, 
and John A. Barclay, tho Executors, all of whom duly proved 
the said will, &c, obtained letters testamentary thereon, and 
took upon themselves the burden of the execution thereof, and 
all of whom were and yet are citizens of the State of Pennsyl- 
vania aforesaid, and your orator and oratrix pray they may be 
made defendants to this Bill. That the said testator, in and by 
the said will, after sundry legacies and devises, of very incon- 
siderable value and amount, compared with the bulk of his 
estate, to his next of kin and heirs at law, and after sundry 
other legacies and devises to various other persons and institu- 
tions, corporate and unincorporated devises and bequeaths to 
the Mayor, Aldermen, and Citizens of Philadelphia, [all of 
whom are citizens of the State of Pennsylvania aforesaid, and 
who your orator and oratrix pray may be made defendants to 



4 



this Bill] their successors or assigns, two undivided third parts 
of certain large and valuable estates in Louisiana, and in addi- 
tion thereto, all the residue and remainder of all his real and 
personal estate of every sort and kind whatsoever situate in 
trust to and for the several uses, intents and purposes mentioned 
and declared of and concerning the same in the said will, and 
so far as regards his real estate in Pennsyfvania, in trust, that 
no part thereof shall ever he sold or alienated by the said Mayor, 
Aldermen and Citizens of Philadelphia or their successors, but 
that the same be forever thereafter, let from time to time, to 
good tenants, at yearly or other rents, and upon leases of not 
more than five years' duration ; and that the rents, issues and 
profits thereof, be applied towards keeping that part of the real 
estate situate in the City and Liberties of Philadelphia, con- 
stantly in good repair, and towards improving the same when- 
ever necessary, by erecting new buildings, and that the net 
residue of such rents and profits [after paying the several an- 
nuities in the said will before provided for] be applied to the 
same uses and purposes as are in the said will declared of and 
concerning the residue of his personal estate, and so far as 
regards his real estate in Kentucky, in trust, to sell and dispose 
of the same, whenever expedient to do so, and apply the pro- 
ceeds to the same uses and purposes declared of the residue of 
his personal estate as aforesaid ; that among such uses and pur- 
poses the primary and preferred object is the erection and 
endowment of a College, for the construction and discipline 
whereof numerous and detailed rules and directions are pre- 
scribed or recommended in said will, the site of which college 
was originally fixed by the said will on a certain square of 
ground in the said City of Philadelphia, but by the last codicil 
to the said will, was removed to a certain country seat called 
Peel Hall, situate on the Ridge Road, in Penn Township, Phi- 
ladelphia County, containing forty-five acres and some perches 
of land, which the testator, after the publication of the said 
original will, had purchased from one William Parker, the 
whole of which country seat, with the lands thereto appertain- 
ing, is expressly devoted by the said codicil to the purpose of 
constituting the site of the said college and its appendages, in 
lieu of the said square of ground in the City of Philadelphia, 
which is consequently thrown into the residuum of the estate 
devised in trust as aforesaid; that the ultimate and only intent 
and object of said college is declared by the said will to be the 



5 



education of such a number of poor male white orphan children 
as can be trained in one institution ; and among other directions 
for the execution of the plan and management of said college, 
especially in regard to the particular objects and the selection 
of the objects of the charity which the said will imports, an in- 
tent to institute, and for whose sole' and exclusive benefit such 
charity purports to be instituted, the testator further directs in 
said will that " as many poor, white male orphans, between the 
ages of six and ten years as the said income shall be adequate 
to maintain, shall be introduced into the college as soon as 
possible ; and for the selection of such orphans, if there be more 
applications for admission than vacancies, he further directs 
priority of application shall entitle the applicant to preference 
in admission, all other things concurring; but if there be at any 
time more applications than vacancies, and the applying or- 
phans shall have been born in different places, a preference shall 
be given, first to orphans born in the City of Philadelphia, se- 
condly, to those born in any other part of Pennsylvania, thirdly, 
to those born in the City of New York, and lastly, to those born 
in the City of New Orleans ; without there being found in the 
body of said will any more certain or definite description or 
limitation of the objects of said charity than as herein above 
recited and mentioned, that the said testator, in and by his said 
will has appropriated in the first instance two millions of dol- 
lars out of the said residue of his personal estate, for the erec- 
tion and endowment of the said college, and has directed the 
method of disbursing and husbanding that fund for such objects, 
and has in like manner dedicated the whole of the said residuum 
of his real and personal estate [with certain exceptions herein- 
after to be mentioned] so devised to the said Mayor, Aldermen 
and Citizens of Philadelphia, in trust, as aforesaid, to the pro- 
gressive enlargement of said college, and its establishment, 
so that in effect there are no other limitations to the number of 
orphans to be ultimately admitted into the said college, nor to 
the extent or cost of the said establishment, but the number and 
extent of the collegiate buildings and their appendages that may, 
from time to time, be erected within the entire area of the said 
forty-five acres and some perches of land, and the sum total of 
the said residuum of the real and personal estate as devised in 
trust as aforesaid, after deducting two other appropriations of 
the same, forming the exceptions above referred to, to wit, the 
sum of five hundred thousand dollars, expressly devised out of 



the said residuum, to the said Mayor, Aldermen and Citizens 
of Philadelphia,, in trust as a capital to be invested, and the 
yearly income thereof appropriated to certain local improve- 
ments and public conveniences, in the City of Philadelphia, 
enumerated under three several heads, in the twenty-second 
clause of said will ; and then by the twenty-third clause of said 
will, he makes a substantial devise to the Commonwealth of 
Pennsylvania, of the sum of three hundred thousand dollars, for 
the purpose of internal improvement by canal navigation, to 
be paid into the state treasury by his executors, as soon as such 
laws shall have been enacted by the constituted authorities of 
said commonwealth as shall be necessary, and amply sufficient 
to carry into effect or enable the constituted authorities of the 
City of Philadelphia, to carry into effect the several local im- 
provements in that city, specified in the said twenty-second 
clause of the will, and recapitulated in the said twenty-third 
clause, without any designation of the particular fund out of 
which the last mentioned sum shall be paid, though from the 
next succeeding clause of said will, it may be plainly inferred, 
that it is to be paid out of the said residuum of his personal 
estate ; and as it regards the remainder and residue of his per- 
sonal estate, he further devises by the twenty-fouth clause of 
said will that the same be held in trust by the said Mayor, 
Aldermen and Citizens of Philadelphia, to be invested, both 
principal and accruing income thereof, in good securities, so that 
the whole, that is the invested principal and income, shall form 
a permanent fund, the income whereof to be applied as follows: 
first, to the further improvement and maintenance of said college 
as before directed in said will ; secondly, to provide by a com- 
petent police, more effectually for the security of the persons and 
property of the inhabitants of said city; and thirdly, to the im- 
provement of city property and the general appearance of the city 
itself, and in effect diminish the burden of taxation, &c.,* all which 
last two appropriations of the income of the last will mentioned 
fund, are made in the said will, and by the last mentioned clause 
thereof, secondary and subordinate to the said college and its 
establishments, which is therein expressly declared to be the 
primary object of the testator: and further, the said testator, in 
and by his said will directed his banking establishment to be 
speedily settled and closed, and the balance accruing from that 
establishment to be paid over to his executors, and to go into 
the said residuum of his estate, all which will, more particularly 



and at large appear, reference being had to the said last will 
and testament and the said other testamentary papers— copies 
of all which and of the probate of the same, your orator and 
oratrix now here produce and annex as exhibit or exhibits to 
this their Bill marked A, and pray that the same may be taken 
and referred to as part and parcel of this Bill — and your orator 
and oratrix are well advised, and do verily believe and so they 
charge, that upon due consideration of the contents of the said 
will, and the sum and substance and true effect of its various 
provisions, it appears that no part or parcel whatever of the 
said residuum of the real estate so devised to the said Mayor, 
Aldermen and Citizens of Philadelphia, in trust as aforesaid, is 
dedicated or in any manner devised or appropriated by the said 
will to any use, purpose or object whatever, but to the erection, 
establishment and endowment of a college for the education of 
orphan children as aforesaid ; and that no part or parcel of the 
said residuum of the personal estate in like manner devised in 
trust as aforesaid, [except the said sum of five hundred thou- 
sand dollars, devised to the Mayor, Aldermen and Citizens, for 
the purpose of accomplishing certain objects of local improve- 
ment in the said city, and the said sum of three hundred thou- 
sand dollars devised to the Commonwealth of Pennsylvania,] 
is dedicated, or in any manner devised or appropriated by said 
will, to any other use, purpose or object than the charity con- 
nected with the establishment of said college, except it be con- 
tingently, in case that establishment do not, or be not made as 
it is contemplated to be, capable of absorbing the whole of said 
fund. 

And your orator and oratrix are credibly informed and be- 
lieve, and so they charge, that the value of the whole real estate 
left by the said testator at his death, and devisable by his said 
will and codicil, amount to two million dollars or upwards, and 
so much of the same whereof the said will purports to devise 
the residuum to the said Mayor, Aldermen, and Citizens, as 
lies within the state of Pennsylvania alone is of the value of one 
million four hundred thousand dollars or upwards, and that the 
whole of the personal estate left by the testator at his death and 
which has come, or will come, to the hands of his said executors 
to be administered, is of the value of seven million of dollars or 
upwards, and the residuum thereof devised, or which the said 
will purports to devise to the said Mayor, Alderman, and Citi- 
zens, of the value of dollars or upwards. 



s 



And your orator and oratrix are further well advised and be. 
licvc, and so they expressly charge, that the supposed devise of 
the residuum and remainder of the said real estate to the said 
Mayor, Aldermen, and Citizens of Philadelphia, in trust as 
aforesaid, is void for want of capacity in such supposed devisee 
to take lands by devise, or if capable of taking generally by de- 
vise for their own use and benefit, for want of a capacity to take 
such lands as devisees in trust; and so that the whole of the 
lands, supposed to be devised to the last named defendants in 
trust as aforesaid, have, for want of good and effectual devise 
of the same, descended to the heirs at law of the said testator, 
Stephen Girard. According to the laws of Pennsylvania, pre- 
scribing the course of descents, and to the treaty stipulations 
between France and the United States, according as such laws 
and treaty stipulations respectively affect the rights of such of 
the said heirs as are citizens of the said state, or of such as are 
aliens and French subjects or citizens ; and further, that what- 
ever be the capacity of the said last named defendants to take 
lands by devise in trust, the objects of the charity for which the 
said lands are so devised in trust as aforesaid, are altogether in- 
definite, vague, and uncertain, and so no trust is created by the 
said will that is capable of being executed or of being cogniza- 
ble at law or equity, nor any trust estate devised that can vest 
at law or equity in any existing or possible^ cestue-que trusts $ 
so that the only trust upon which the said last mentioned de- 
fendants can hold the said residuum of the said real estate, (if they 
be capable of holding the same upon any trust,) is a trust for the 
alien and citizen heirs of the said testator, Stephen Girard, ac- 
cording to their respective rights of inheritance and succession ; 
and further, that the whole residue of the personal estate sup- 
posed to be devised by the said will to the last mentioned de- 
fendants, in trust for the objects of charity aforesaid, in like 
manner result to the next of kin of the said testator, Stephen 
Girard, both citizen and alien, according to their several dis- 
tributive rights, by reason of the same defect of definite and 
certain objects of the charities for benefit of which the said de- 
vise was supposed to be made. 

And your orator and oratrix further show, that the said tes- 
tator left at his death the following persons, and no other, en- 
titled, as his heirs at law and next of kin to the inheritance and 
succession of his real estate, and to a due distribution of his 
personal property, and so far as the same remain undisposed of, 



9 

or ineffectually disposed of by the said will, to wit : your orator, 
Etienne Girard, brother of the whole blood of the said testator, 
Stephen Girard, and your oratrix, Francois Fenelon Vidal, 
widow of Lanis Vidal, deceased, and niece of the said testator, 
Stephen Girard, (being the same person named and described 
by the said testator, in his said will, as his niece Victoire Fene- 
lon, daughter of his late sister, Sophia Girard Capayron) 
both of them being aliens, and citizens of France, as aforesaid, 
and each of them entitled, as alien and French heirs of the said 
testator, Stephen Girard, to one third part, or to sell and dis- 
pose of one third part of such undevised land, and each of them 
in like manner entitled to one third part of such personal estate 
as aforesaid, in a due course of distribution; and the following 
citizen heirs, and next of kin, to wit : Maria Antoinetta, wife of 
John Hemphill, Henrietta, wife of John Y. Clark, and Caroline, 
wifs of John B. Haslam, which said Maria Antoinetta, Henri- 
etta, and Caroline, are daughters of John Girard, deceased, 
brother of said Stephen Girard, of the whole blood, and they 
and their said husbands, are all citizens of the said state of Penn- 
sylvania ; and your orator and oratrix pray that they and their 
said husbands be made defendants to this Bill. That by a deed 
of Indenture, dated the 24th day of April, inthe year 1833, be- 
tween the said John B. Haslam, and Caroline, his wife, of the 
one part, and Mark Richards, of the city of Philadelphia, of 
the other part, (a copy of which is hereto annexed marked B. 
as an exhibit, and which your orator and oratrix pray be taken 
and referred to as part of this their Bill,) the said John and 
Caroline, granted and conveyed to the said Mark Richards, his 
heirs and assigns, all and singular, the real estate belonging to 
her, the said Caroline, or to which she is in anywise entitled in 
trust to pay the rents, issue, and income thereof, to the said 
Caroline during life, and after her death to hold the said estate 
for the use of such persons or purposes as the said Caroline 
might, by an instrument in nature of a last will and testament, 
appoint, and in default of any such appointment, then in trust 
for such persons to whom the said real estate would have gone, 
according to the laws of Pennsylvania, had the said deed not 
been executed, and the said Caroline had died unmarried seized 
in fee of the premises ; and your orator and oratrix aver that the 
said Mark Richards is a citizen of the state of Pennsylvania, 
pray that the said Mark Richards may be made a defendant to 
this Bill. 

2 



10 

And your orator and oratrix further show that they have ap- 
plied themselves, in a friendly manner, to the said defendants, 
requesting the said Mayor, Aldermen, and citizens of Phila- 
delphia, to let them into the enjoyment of their respective shares 
of the said real estate hy entering into the possession of the 
same, or selling and disposing of the same, and to account to 
your orator and oratrix for the rents, issue, and profits, of the 
same since the death of the said Stephen Girard; also requcst- 
ng the said executors to account with your orators for the said 
personal estate of the said testator, Stephen Girard, which has 
come to their hands to be administered, &c, and to make due 
distribution of the surplus of the same among the next of kin of 
the said testator, and especially to pay and distribute to your 
orator and oratrix their dne share and proportion of the same, 
and requesting the other defendants, the said citizen heirs of the 
said testator and their said husbands respectively, and the said 
Mark Richards, trustee, to join and co-operate with your orator 
and oratrix in a due partition and division among all the said 
heirs or assigns of the said real estate. 

But now, so it is, may it please the court, that the said defendants, 
no wise regarding the said reasonable requests of your orator and ora- 
trix, but combinir- J and confederating together, and artfully and 
subtilely contriving how to aggrieve and defraud your orator and ora- 
trix in the premises, altogether refuse to comply with such their rea- 
sonable requests and instances. And for as much as your orator and 
oratrix are remidiless, in the premises in and by the strict rules of 
the common law, and can have relief in this court only, as a court of 
equity where matters of this sort and especially of fraud, trust, par- 
tition, distribution and account, are properly cognizable and relieva- 
ble : To the end, therefore, that the said defendants may upon their 
several corporal oaths, full, true and perfect answers make to all and 
singular the matters and things in this bill contained, as fully and 
particularly as if the same were herein repeated and particularly in- 
terrogated ; especially that they may answer and discover whether 
your orator Etienne Girard and your oratrix, Franchise Fenelon Vidal, 
be not such heirs at law and next of kin of the said testator, as they have 
above described themselves ; and whether they and the defendants 
above named and described as being the citizen heirs and next of kin 
of said testator be not the only persons entitled to claim/as heirs 
at law and next of kin, of the said testator, such petition of his real 
estate as aforesaid, in case any such estate real or personal, should 
be found not disposed of, or not effectually disposed of by his said 
will. That the said defendants, the said Mayor, Aldermen and citi- 
zens of Philadelphia may answer and discover what real estate the 



11 

said testator died seized of; and where the same is situate, and the 
value of the same: more especially what real estate he died seized of 
within the limits of Pennsylvania — the aggregate value thereof, what 
of such real estate they claim or have entered into the possession of 
as claiming the same under the said supposed residuary devise in 
trust to them — the aggregate value thereof — where situate in the said 
state, and the yearly rents, issues and profits of the same — what mo- 
nies effects, securities, assets and personal or mixed property or es- 
tate they have received from the said other defendants, the Executors 
as in fulfilment of such supposed residuary devise; and what has be- 
come of such real and personal estate, and the interest and income 
thereof; that they be compelled by the order or decree of this court to 
set apart and surrender to your orator and oratrix, respectively, their 
due shares and proportions of such real estate, and to account to them 
for their due shares and proportions respectively of the rents, issues 
and profits of the same since the death of the testator — and that the 
other defendants, the said citizen heirs of the said testator be decreed 
to quit claim and release to your orator and oratrix such parts and 
parcels of the said real estate as upon a due partition thereof shall be 
found the just shares and proportions of your orator and oratrix res- 
pectively, and that the other of said defendants, the above nam &d ex- 
ecutors of the said will, answer and discover what monies, stocks, se- 
curities, effects, personal property, ov assets of anv kind or descrip- 
tion, were left by the said testaW a 1 )his deatti; what and how much 
of the same have come to their hands to be administered, or are like 
to fall as assets into their hands to be administered hereafter; what 
has become of the same, and in whose hands the same now be, of 
what consisting, and how administered or disposed of since the death 
of said testator, and that the last mentioned defendants be decreed 
to account and pay to your orator and oratrix, respectively, their due 
shares and proportions of all such assets, present and future, and of 
all the increments of the same since the death of the testator, and 
that your orator and oratrix may a have such further and other relief 
in the premises as to this court may seem agreeable to equity and good 
conscience. 

May it please the court to grant them the proper and usual writ or 
writs of subpoena, &c. to be directed to the Mayor, Aldermen, and 
Citizens of Philadelphia— to the said Timothy Paxson, Thomas P. 
Cope, Joseph Roberts, Wm. J. Duane and John J. Barclay, Execu- 
tors as aforesaid — to the said Mark Richards,'Trustee as aforesaid — 
and to the said John Hemphill and Maria A, his wife, John Y. Clark 
and Henrietta his wife, and John B. Haslem and Caroline his wife — 
commanding them severally and respectively, to be and appear a +<i 
certain day and under a certain pain therein to be specified, '>-* P er " 
sonally to be and appear before your honors in this hon^ Jle court > 



( 



tiS l Hft2,L2f..£9NGRESS # 



12 029 785 096 9 



and then ahd there to answer all and singular the premises aforesaid 
and to stand to perform and abide such order, direction and decree 
therein, as to your honors shall seem meet; and your orator and ora- 
trix shall ever pray, &c. &c. 

THOMAS KITTERA, 
Solicitor for Complainants. 
JAMES M. BROOM, 
Solicitor for Etienne Girard. 
Filed August 26th, 1836. 



^■75 



LIBRARY OF CONGRESS 



I II II ill I 

029 785 096 9 






Hollinger Corp. 
P H8.5 



^^ 



